A Constitutional Law Scavenger Hunt With A Serious Purpose

Around the country, law students who study Constitutional Law in the Fall sone will be studying for their finals; not long afterwards, those who study it in Spring will start up their course. So it’s as good a time as any to list the questions that, back in the days I used teach Constitutional Law I, I used to ask my students during the first week of class.

Some of these questions are very easy (although even in those cases, the answers may surprise you); some only appear to be. Others are inspired by real and difficult cases; a few illustrate doctrines of constitutional interpretation, some more controversial than others. And perhaps one or two don’t have answers, or at least not answers that everyone agrees to. Which is remarkably odd given the simplicity of most of these questions….

I was a ConLaw TA last semester. Here’s a mental exercise I gave the students:

Can you guess which one of these was published in a national newspaper, and when?

#1 Chief Justice Earl Warren did more inadvertent damage to our democracy than any other American this century. When he and his Supreme Court colleagues issued the Brown v. Board decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Congress as we know it. When Warren wrote the Brown decision, it took the segregation issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority thats always existed on this issue. These legislative compromises wouldnt have pleased everyone, but would have been regarded as legitimate. Instead, Warren and his colleagues invented a right to integration that existed nowhere in the Constitution and imposed a solution more extreme than the policies of just about any other comparable nation. Social conservatives became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Civil rights advocates lost touch with ordinary Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists. The fact is, the entire country is trapped. Earl Warren and his colleagues suppressed that democratic integration debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you cant stop the escalation of conflict in the middle. You have to kill it at the root. Unless Brown v. Board is overturned, politics will never get better.

#2 Justice Harry Blackmun did more inadvertent damage to our democracy than any other American this century. When he and his Supreme Court colleagues issued the Roe vs. Wade decision, they set off a cycle of political viciousness and counter -viciousness that has poisoned public life ever since, and now threatens to destroy the Congress as we know it. When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate. Instead, Blackmun and his colleagues invented a right to abortion that existed nowhere in the Constitution and imposed a solution more extreme than the policies of just about any other comparable nation. Religious conservatives became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Women’s rights advocates lost touch with ordinary Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists. The fact is, the entire country is trapped. Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can’t stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe vs. Wade is overturned, politics will never get better.

#3 Justice Rufus Peckham did more inadvertent damage to our democracy than any other American this century. When he and his Supreme Court colleagues issued the Lochner v. New York decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Congress as we know it. When Peckham wrote the Lochner decision, it took the labor issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority thats always existed on this issue. These legislative compromises wouldnt have pleased everyone, but would have been regarded as legitimate. Instead, Peckham and his colleagues invented a right to laissez-faire that existed nowhere in the Constitution and imposed a solution more extreme than the policies of just about any other comparable nation. Progressives became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Free market advocates lost touch with ordinary Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists. The fact is, the entire country is trapped. Rufus Peckham and his colleagues suppressed that democratic labor debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you cant stop the escalation of conflict in the middle. You have to kill it at the root. Unless Lochner v. New York is overturned, politics will never get better.

#4 Justice Anthony Kennedy did more inadvertent damage to our democracy than any other American this century. When he and his Supreme Court colleagues issued the Lawrence v. Texas decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Congress as we know it. When Kennedy wrote the Lawrence decision, it took the homosexuality issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority thats always existed on this issue. These legislative compromises wouldnt have pleased everyone, but would have been regarded as legitimate. Instead, Kennedy and his colleagues invented a right to homosexuality that existed nowhere in the Constitution, and imposed a solution more extreme than the policies of just about any other comparable nation. Traditionalist voters became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Gay rights advocates lost touch with ordinary Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists. The fact is, the entire country is trapped. Anthony Kennedy and his colleagues suppressed that democratic homosexuality debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you cant stop the escalation of conflict in the middle. You have to kill it at the root. Unless Lawrence v. Texas is overturned, politics will never get better. —- You probably agree with some, but not all, of these. Can you make an argument for why your choices are constitutionally sound and judicially appropriate? Can you make exactly the opposite argument? Consider how you would make those arguments using the cases (both holding and reasoning) and the historical record.

Civil rights advocates lost touch with ordinary Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views.

Yeah, that’s so true. Those civil rights advocates didn’t talk to voters, because they were systemically denied not only the right to vote, but to be in a wide variety of places, like the front of a bus, or a lunch counter. Those places were marked “No colored folks.” Shame on them colored folks for not having conversations.

Can a person simultaneously be a Supreme Court Justice and hold Cabinet office (e.g. be Secretary of State or Attorney General)? I just saw this post – how ironic, vis-a-vis the current debate and pending case on Lindsey Graham’s being a full Colonel in the Air Force Reserve and assigned as a military judge! At least one of the GTMO defendants has sought habeas relief in the military judicial system, the CAAF denied it on comity reasons based upon the Hamdan and DC GTMO litigation. So, I can just see Graham sitting on the Court, where someone is litigating the Constitutionality of HIS anti-GTMO habeas act. . . Recusal???? Don’t hold your breath!

#18: Could Congress validly give the Chief Justice the power to appoint the Attorney General?

This is an interesting question. Art. II, Sect. 2, clause 2 of the Constitution states:

“He [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

The language of this Advice and Consent clause would appear to indicate that it would not be constitutional for Congress to pass a law giving the power to appoint the Attorney General to the Chief Justice of the United States. The phrasing of the clause implies that “other public Ministers and Consuls” are to be distinguished from “all other Officers of the United States”; the Attorney General would likely be considered a “public Minister,” while the “inferior Officers” would be equivalent to “all other Officers of the United States.” More importantly and compellingly, the Attorney General, as head of the Justice Department and member of the Cabinet, would be one of “the Heads of Departments” to which Congress could grant the power of “Appointment of such inferior Officers.” That would imply that the Attorney General would not be one of the “inferior Officers” covered under the last part of II.2.2, thus indicating that Congress would not be able to constitutionally give the Chief Justice the power to appoint the Attorney General. (II.2.2 does appear to indicate, however, that Congress could pass a law granting the Chief Justice the power to appoint lower level Cabinet officials, such as the Solicitor General, or for that matter assistant secretaries in any Cabinet department.)

As to Question 9- “how ironic, vis-a-vis the current debate and pending case on Lindsey Graham’s being a full Colonel in the Air Force Reserve and assigned as a military judge!” And it’s an Air Force case! (How’s that for continuity??) See post #1 and post #2 from JAG Central

Can Congress limit the jurisdiction of the federal courts to cases involving at least $ 200,000,000 ?

“Not under the Constitution. Under Marbury v. Madison, Congress may limit — but never expand — federal court jurisdiction.”

Richard, I don’t follow your reasoning here. The current threshold for diversity jurisdiction is $75,000. Raising that to $200,000,000 is LIMITING, not expanding the Court’s jurisdiction. Which is the reason Congress has already raisd the limit several times, most recently from $50,000 to $75,000.

By “Not under the Constitution,” I meant that the Constitution does not discuss limiting or expanding the Court’s jurisdiction one way or the other. It just lists some stuff that they have jurisdiction over.

Just looking at the Constitution, one might think. “That stuff, all of that stuff, and nothing other than that stuff.” Marbury v. Madison agrees with “Nothing other than that stuff”, but disagrees with “all of that stuff.” Thus, Court jurisdiction may be limited, but not expanded.

It’s been 7 years since this was originally posted… I hope you’ll keep your word, Mr. Froomkin, and provide us with the answers. As an aspiring constitutional lawyer, these questions are extremely interesting! Here’s my stab at some of them.

Article I, Sec. 8 says that “The Congress SHALL have the power … to raise and support armies” [capitalization added]. That doesn’t mean Congress must exercise that power, only that if it may exercise that power if it so chooses. … (3.) May Congress pass secret laws? If so, may (must?) the courts enforce them?

Yes, but not without limit. If a law directs that money be drawn from the public treasury, a regular statement of receipts and expenditures (although not necessarily the law itself) must be made. Secrecy is also permitted when each House publishes journals of their proceedings (as they should think fit). I can’t find anything in the Constitution saying that all laws must be made public.

Must courts enforce secret laws? Yes! “The Constitution and the Laws of the United States … made in Pursuance thereof … shall be the supreme Law of the Land; and the judges in every state shall be bound thereby.” Isn’t this issue raised in FISA and the FISA Courts?… … (4.) Can Congress pass valid laws which criminalize past conduct? Which impose taxes on past conduct? Which impose costs on the future results of past conduct? Article I, Sec. 9 says that “no ex post facto [after the fact] law shall be passed.” … (5.) Is there anything in the first seven articles of the Constitution that prevents the federal government from taking your house for $1?

No, it isn’t until the 5th Amendment that the Takings Clause appears: “nor shall private property be taken for public use without just compensation.” … (6.) Is there anything in the first seven articles of the Constitution that prevents the federal government from awarding you a $1 million personal bonus?

I don’t think so. The only evidence to the contrary I can find is in Art. I Sec. 8: “Congress shall have the power to lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts … of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States.”

The excerpt suggests that all duties, imposts and excises be uniform, but no such condition is made for the paying the Debts of the US or providing for the general welfare. Therefore, I don’t think there is anything preventing me from collecting $1,000,000 of the taxpayer’s hard-earned money! … (7.) What is “corruption of blood,” and why do we care? (you did look it up, didn’t you?)

I looked it up a long time ago. “Corruption of blood” was the argument/principle put forth (and is even made in Game of Thrones) that because a parent was found to be a traitor, his/her offspring must be traitorous as well and thusly should be detained before they act against the State. We care because in a just society, we should be judged by our own actions and not the actions of other people or speculative actions we might take. … (8.) What is a “bill of attainder,” and why do we care?

An arbitrary law passed against an individual or group that punishes them without judicial review. We care because laws should be uniform (everyone follows the same rules), and it’s only when we are proven beyond any reasonable doubt of having broken a law in a court of law that we should be punished for doing so. … (9.) (&) (10.) Can a person simultaneously be a Member of the House of Representatives and hold office in the Cabinet? Can a person simultaneously be a Senator and hold office in the Cabinet?

No, Art. I Sec. 6 says: “No Senator or Representative shall, during the Time for which s/he was elected, be appointed to any civil Office under the Authority of the United States, … and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” … (11.) Is there anything in the federal constitution that would prevent Congress from being chosen by a lottery among all registered voters?

Since there exists eligible and registered voters who are not eligible for membership into the House of Reps and/or the Senate (for example, due to the various age restrictions on an 18 year-old voter), the answer is NO. BUT, if you ignore this eligibility restriction, I don’t think there would be anything preventing a lottery. Art. I, Sec. 4 says: “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…”

So if the Georgia state Legislature decided that they wanted to change the manner in which they elected their Representatives and Senators to Congress to a lottery system among them all (eligibility assumed), they could theoretically do it (as long as Congress didn’t intervene). … (12.) Can Generals be impeached?

Art. II, Sec. 4 says: “The President, Vice President, and all civil Officers of the [US], shall be removed from Office on Impeachment for, and Conviction of, Treason … and other high Crimes and Misdemeanors.”

So the question is: Is a General a civil Officer? I’m pretty confident the answer is no, as military officers aren’t “civil” officers, but commissioned officers. Therefore, Generals cannot be impeached, although almost every other officer under the US is impeachable. … (13.) What is the minimum number of justices constitutionally required to form a Supreme Court?

One – You need at least a Chief Justice to sit in on any Senate Impeachment hearings. … (14.) Who decides how many justices actually sit on the Supreme Court?

Congress! Art III, Sec. 1 says: “The judicial Power shall be vested in one supreme Court, and other such inferior Courts as the Congress may from time to time ordain and establish.” … (16.) Where, if anywhere, does the Constitution give the Supreme Court the authority to overrule itself?

Art III, Sec. 2 says: “the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made … under their Authority.”

I would surmise that if you accept that the supreme court is fallible (which it is), that it may incorrectly decide a case in law at one point in time, and then later correct itself via overruling its past mistake when a very similar case in law arises. Although, I suppose this all hinges on a certain understanding of the judicial Power which, although never enumerated, does in fact exist. … (19.) What happens if the President signs a bill that, due to a typographical accident, lacks a sentence that was present in the versions passed by both houses of Congress?

Assuming the President thinks s/he is signing into law the exact words of the bill passed by both houses of Congress, the President should enforce the law as such as was intended, even if there was a typographical error.

Why? Art. II, Sec. 3 says, “[the President] shall take Care that all Laws be faithfully executed.” Thus, even if a typo exists in the final document (such as how “Pensylvania” is misspelled in the Constitution), a faithful execution of the law demands that the President act as if he signed into law the exact words that Congress (and he himself thought) passed. … OK, last question for now! … (20.) If Congress sets out to minimize the President’s powers, can it … evict him from the White House?

I would argue, Yes! Art. I, Sec. 8 says that “Congress shall have the power … to exercise exclusive Legislation in all Cases whatsoever over such District [of Columbia] as may, … become the Seat of the Government of the [US], … for the Erection of Forts … and other needful Buildings;”

Without knowing for sure, I would imagine this is where power to erect the White House came from, so Congress could just as easily (well, it would probably be pretty difficult) demolish the White House. It would likely have to override a veto, but it’s theoretically possible.